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“Gig workers are widely considered independent contractors who run their own businesses,”
Wilma Liebman, a former National Labor Relations Board member (D), told Bloomberg
BNA. “Antitrust law prohibits independent businesses from colluding.”

The question isn’t entirely settled, but some lawyers and employee advocates assume
that a worker who cobbles together jobs from various sources or uses an online platform
to pick up some extra cash is treated like an entrepreneur or business for antitrust
purposes. They say that means gig worker groups, like a new guild for New York Uber
drivers, may wind up operating as something of a company-sponsored employee organization.

Advocates hope Congress will eventually tweak existing laws to give gig workers a
stronger collective voice. Still, many don’t expect the groups that spawn from those
changes to look very much like traditional labor unions.

“The worker collectives that emerge if there are changes in the law will be a lot
less rigid than some of the unions have been,” Arun Sundararajan, a business professor
at New York University and author of a book on “crowd-based capitalism,” told Bloomberg
BNA. “The workers might have certain shared objectives, but it’s not the same as a
group of people on an assembly line.”

Overlap Complicated

Courts have for decades been grappling with the tension between antitrust laws banning
concerted activities that restrain commerce and the National Labor Relations Act,
which protects workers’
right to band together and negotiate the terms and conditions of their jobs with an
employer. The compromise that they’ve reached is already being tested by nonunion
worker organizations.

“This is probably one of the most complicated areas of labor law,” Steven Wheeless,
a partner at Steptoe &
Johnson in Phoenix, told Bloomberg BNA. Courts have generally responded by creating
a broad antitrust exception for labor unions, but the limits of that exception are
still not clear, he said.

The Sherman Act, which first became law all the way back in 1890, generally bars price-fixing
and other forms of collusion in which businesses agree to do something that restricts
the free flow of trade and commerce. It was designed to combat monopolies and curb
business practices that impede competition.

The law was updated nearly a quarter century later—via the Clayton Act—to specifically
exempt labor organizations bargaining on behalf of the workers they represent. It
also provides a safe harbor for other union activity, like picketing, strikes and
other work stoppages.

Wheeless said courts have interpreted the antitrust laws, combined with separate limits
on judicial involvement in labor disputes, to exempt “a labor organization that acts
as a labor organization in the furtherance of its goals.”

Nonunion worker centers like OUR Walmart, Fight for $15 and Restaurant Opportunities
Centers United raise trickier legal questions. Critics have argued that the groups
act as “fronts”
for unions designed to evade reporting requirements.

Early Stages

Advocates have largely conceded that gig worker groups aren’t covered by the labor
exemption. They often point to a seven-decades-old Supreme Court decision in which
the justices found that an association of independent fishermen were not protected
by a law banning court interference with labor disputes (
Columbia River Packers Ass’n., Inc. v. Hinton, 315 U.S. 143 (1942)).

A separate antitrust exemption for government action may provide some protection for
gig worker groups, former NLRB Chairman William B. Gould (D) told Bloomberg BNA. Gould
said the safe harbor could apply to situations like in Seattle, where a proposed ordinance
would allow Uber drivers to bargain with the company under some government oversight.

“They can avail themselves of the government exemption if they negotiate the deal
and government is in some way involved in it, like by ratifying the agreement,” Gould
said.

Still, gig workers and other independent contractors have moved instead to form more
loose organizations, like the Independent Drivers Guild. The group works with Uber’s
backing—and in partnership with the International Association of Machinists and Aerospace
Workers—but it doesn’t have the legal right to collectively bargain on behalf of its
members.

James Conigliaro Jr., the guild’s founder, told Bloomberg BNA that the group has created
a voice for drivers. He also said the guild recently scored a victory by convincing
the ride-sharing giant to scrap a policy that required high-end Uber Black drivers
to also pick up lower-paying fares.

He acknowledged, however, that the guild “by no means is a final version or a perfect
model.”

Conigliaro and NYU’s Sundararajan also said they expect gig worker groups to evolve
into something different than traditional labor unions if the antitrust laws are ever
updated. They’ll likely focus on fighting for basic terms and conditions that apply
to all workers, while keeping in mind that many independent contractors prefer the
flexibility that comes with sort of being their own bosses.

“Moving forward we’ll have lawyers, doctors, laborers and all kinds of other professionals
who will be platform-based providers of services and skills,” Sundararajan said. “To
preclude them from having some of the same kind of protections as traditional employees
doesn’t make any sense.”

To contact the reporter on this story: Chris Opfer in Washington at
copfer@bna.com

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